On 5 May 1999, the Human Rights Committee adopted its Views under article 5,
paragraph 4, of the Optional Protocol in respect of communication No. 633/1995.
The text of the Views is appended to the present document.

The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,

Meeting on 7 April 1999,

Having concluded its consideration of communication No.633/1995
submitted to the Human Rights Committee by Mr. Robert W. Gauthier under the
Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it
by the author of the communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Robert G. Gauthier, a Canadian citizen.
He claims to be a victim of a violation by Canada of article 19 of the Covenant.

The facts as presented by the author

2.1 The author is publisher of the National Capital News, a newspaper founded
in 1982. The author applied for membership in the Parliamentary Press Gallery, a
private association that administers the accreditation for access to the
precincts of Parliament. He was provided with a temporary pass that gave only
limited privileges. Repeated requests for equal access on the same terms as
other reporters and publishers were denied.

2.2 The author points out that a temporary pass does not provide the same
access as a permanent membership, since it denies inter alia listing on
the membership roster of the Press Gallery, as well as access to a mailbox for
the receipt of press communiques.

2.3 As regards the exhaustion of domestic remedies, the author explains that
he has filed numerous requests, not only with the Press Gallery, but also with
the Speaker of the House, all to no avail. According to the author, no reasons
have been given for denying him full access. The author applied to the Federal
Court for a review of the decision of the Press Gallery, but the Court decided
that it did not have jurisdiction over decisions of the Press Gallery since it
is not a department of the Government of Canada. A complaint filed with the
Bureau of Competition Policy, arguing that the exclusion of the National Capital
News from equal access constituted unfair competition was dismissed.

2.4 The author then initiated an action in the Provincial Court against the
Speaker of the House of Commons, requesting a declaration by the court that the
denial of access to the precincts of Parliament on the same terms as members of
the Canadian Parliamentary Press Gallery infringed the author's right to freedom
of the press as provided in the Canadian Charter of Rights and Freedoms. The
Court ruled, on 30 November 1994, that the decision of the Speaker not to permit
the author to have access to the facilities in the House of Commons that are
used by members of the Press Gallery was made in the exercise of a parliamentary
privilege and therefore not subject to the charter or to review by the Court.

2.5 The author points out that he has been trying to obtain equal access to
press facilities in Parliament since 1982, and he argues therefore that the
application of domestic remedies is unreasonably prolonged, within the meaning
of article 5, paragraph 2(b), of the Optional Protocol. He also expresses doubts
about the effectiveness of the appeal.

The complaint

3. The author claims that the denial of equal access to press facilities in
Parliament constitutes a violation of his rights under article 19 of the
Covenant.

State party's observations

4.1 By submission of 28 November 1995, the State party argues that the
communication is inadmissible.

4.2 The State party recalls that the author runs an Ottawa based publication,
the National Capital News, which is issued with varying degrees of regularity.

4.3 The Canadian Parliamentary Press Gallery is a private, independent,
voluntary association formed for the purpose of bringing together media
professionals whose principal occupation is the reporting, interpreting and
editing of news about Parliament and the federal Government.

4.4 The Speaker of the House of Commons is the guardian of the rights and
privileges of the House and its members, and as such, by virtue of parliamentary
privilege, has exclusive control over those parts of the Parliamentary precincts
occupied by the House of Commons. One of his responsibilities in this regard is
controlling access to these areas.

4.5 The State party explains that all Canadian citizens enjoy access to
Parliament, which is obtained by means of a pass, of which there are different
types. The press pass provides access to the media facilities of Parliament and
is issued automatically to accredited members of the Press Gallery.

4.6 The State party explains that there is no formal, official or legal
relationship between the Speaker and the Press Gallery. The Press Gallery has
been accommodated by the Speaker by maintaining the media facilities of
Parliament, such as working space, telephones, access to the Library and
Restaurant and the provision of designated seating in the public galleries. The
Speaker has no involvement with the day-to-day operations of these facilities,
which are independently run by the Press Gallery.

4.7 The State party points out that most of the Press Gallery's facilities
are located off Parliament Hill and thus outside the Parliament's precincts. The
State party also notes that live television coverage of all proceedings in the
House of Commons is available throughout Canada and many journalists thus seldom
actually use the media facilities of Parliament.

4.8 The Press Gallery knows several categories of membership, the most
relevant being the active and temporary membership. Active membership allows
access to all media facilities of Parliament for as long as the member meets the
criteria, that is for as long as he or she works for a regularly published
newspaper and requires access to the media facilities as part of his or her
primary occupation of reporting Parliamentary or federal Government news. To
those who do not meet these criteria the Press Gallery grants temporary
membership which is granted for a defined period and provides access to
substantially all of the media facilities of Parliament, except for access to
the Parliamentary Restaurant.

4.9 According to the State party, the author has applied several times for
membership in the Press Gallery since founding the National Capital News in
1982. His requests for active membership have not been granted, because the
Gallery has been unable to ascertain whether he satisfies the criteria.
Temporary membership was given to him instead, which was renewed on several
occasions. In this context, the State party points out that the author has been
uncooperative in providing the Press Gallery information about the regularity of
his newspaper. Without such information necessary to see whether the author
fulfils the criteria for active membership, the Gallery cannot admit him as a
full member.

4.10 The author has requested that the Speaker of the House of Commons
intervene on his behalf. The position of the Speaker's office being one of
strict non-interference with Press Gallery matters, the Speaker declined to
intervene. The State party emphasizes that at all times the author has enjoyed
access to the precincts of Parliament, and access to the media facilities of
Parliament during the periods of time when he had a temporary membership card of
the Press Gallery.

4.11 The State party submits that the author has instituted several
proceedings against the refusal of the Press Gallery to grant him active
membership. In 1989, he filed a complaint with the Bureau of Competition Policy,
which concluded that the Competition Act had not been contravened. In October
1991, the author's application for judicial review of this decision was denied
by the Federal Court since the decision was not reviewable. In 1990, the Federal
Court dismissed an application by the author for judicial review of the Press
Gallery's decision not to grant him active membership, since the Court lacked
jurisdiction.

4.12 An action against the Press Gallery in the Ontario Court (General
Division) is still pending. In this action, the author seeks damages of $ 5
million.

4.13 On 30 November 1994, the Ontario Court (General Division) struck out the
action brought by the author against the Speaker of the House of Commons, in
which he sought a declaration that "the denial of access to the precincts of
Parliament on the same terms as members of the Canadian Parliamentary Press
Gallery" infringed his right to freedom of the press as guaranteed in the
Canadian Charter of Rights and Freedoms. The Court based itself on jurisprudence
that the exercise of inherent privileges of a Canadian legislative body is not
subject to Charter review. The author has filed a Notice of Appeal against this
decision with the Ontario Court of Appeal, but has not as yet filed the required
documentation in proper form.

4.14 The State party argues that the communication is inadmissible for
non-exhaustion of domestic remedies. The State party notes that the focus of the
author's communication, against the Speaker of the House of Commons, is
misdirected since the Speaker's policy has been to administer access to the
media facilities of Parliament based on the Press Gallery's determinations
regarding membership. Determination of membership is entirely within the
jurisdiction of the Press Gallery and lies outside the competence of the
Speaker. According to the State party, the suggestion that the Speaker should
override the Press Gallery's internal affairs would undermine freedom of the
press. Since the source of the author's complaint is the Press Gallery's refusal
to grant him active membership, the State party is of the opinion that the
author has failed to exhaust the remedies available to him in this regard.

4.15 The State party submits that the author's failure to cooperate with the
Press Gallery constitutes a clear failure to exhaust remedies available to him
domestically. The State party further notes that legal proceedings against the
Press Gallery are still ongoing in the Ontario Court (General Division) and that
the author's appeal against the order of the Ontario Court (General Division)
striking out his action against the Speaker of the House of Commons remains
unresolved, pending his satisfaction of procedural requirements.

4.16 Moreover, the State party argues that the communication is inadmissible
for failure to substantiate the allegation that the failure to grant the author
full membership of the Press Gallery amounts to a denial of his rights under
article 19 of the Covenant. In this context, the State party recalls that the
author has never been denied access to the Parliamentary precincts, and that he
has had access to the media facilities of Parliament whenever he was in
possession of a temporary press pass. The author has not shown any instance in
which he has been frustrated in his ability to gain access to or disseminate
information about Parliament.

The author's comments on the State party's submission

5.1 In a submission, dated 17 January 1996, the author informs the Committee
that he has been prohibited access to the media facilities in Parliament (since
he has no press pass). The author explains that while the visitors gallery is
open to him, it is of little value to a professional journalist as one is not
allowed to take notes when seated in the visitors gallery.

5.2 The author further states that the Press Gallery has obtained a Court
order, dated 8 January 1996, that prohibits him from entering its premises. The
author acknowledges that these premises are located off Parliament Hill, but
states that the Government press releases and other material provided in the
Press Gallery's premises are funded by the taxpayers of Canada and form part of
the facilities and services provided by the Government for the media.

6.1 In his comments on the State party's submission, dated 5 February 1996,
the author contends that the State party's reply consists of false or incomplete
information and numerous misleading statements.

6.2 He submits that although no powers or authority have been legally
transferred from Parliament or the Government of Canada to the Canadian
parliamentary Press Gallery, the Gallery assumes powers to permit or deny access
to the facilities and services provided by the Parliament and Government of
Canada to the media. The author states that his numerous requests for access
were presented to the Press Gallery without success, and that he made repeated
applications to the Administrative Officials within the Parliament for access to
the media facilities, also without success. His attempts to have the matter
remedied by the Courts have also been unsuccessful.

6.3 The author submits that he has been trying to have a solution to his
denial of access to the media facilities since 1982, when he founded his
newspaper, and argues that the application of domestic remedies should be
considered as unreasonably prolonged. In this context, the author points to "the
history of deliberate and contrived delays, failure to reply to or even
acknowledge reasonable requests for information and assistance, and the evidence
that these delays will continue".

6.4 In addition, the author states that the possibility of achieving an
effective remedy in Canada within the foreseeable future does not exist. In this
context, he notes that the measures to prevent him from exercising his
profession have only increased in the recent past, as is shown by the notice
denying him access to the Press Gallery premises, the conviction against him for
trespassing on the premises of the Press Gallery, the conviction against him for
trespassing on Parliament Hill, and the Court order prohibiting him access to
the premises of the Press Gallery, that is to the "publicly subsidized
facilities and services provided by the Government of Canada for the media".

6.5 The author also states that "the Canadian Parliamentary Press Gallery,
while maintaining that it is bending over backwards to allow access to the
facilities and services provided for the media by the Government of Canada
continues to enforce the Court-ordered injunction prohibiting access for the
Publisher of the National Capital News to any of these public facilities and
services - now in addition to being denied access to information the author is
also under the threat of contempt of Court should he attempt to even seek equal
access as his competitors enjoy to information specifically and purposely
provided for the media, domestic and foreign, by the Government and Parliament
of Canada."

6.6 The author complains about the ridicule and trivializing to which he has
been subjected. He refers to a Federal Court Justice who compared the author
with "Don Quixote, tilting at windmills", a Provincial Court Justice who
commented to him: "You seem to take offence at every slight", as well as the
State party's reply to the Human Rights Committee, which according to him
trivializes the matter brought before the Committee. In his opinion, this shows
that he will never be able to obtain an effective remedy in Canada.

6.7 The author contests the State party's statement that live television
coverage of all the activities in the House of Commons is available.

6.8 The author takes issue with the State party's suggestion that his
conflict is with a private organization. He states that his complaint is that he
has been denied access to the facilities and services provided for the media by
the Parliament and Government of Canada, by Canadian officials and Courts. He
adds that "the pretext that such access requires membership in conjunction with
a group of self-anointed journalists calling themselves the Canadian
Parliamentary Press Gallery is not material to this issue for the purposes of
article 19(2) of the Covenant". He points out that the Press Gallery has been
incorporated in 1987 in order to limit the personal liability of its members,
and that in practice it controls access to the media facilities provided by
Canada. However, in the author's opinion he is under no obligation to meet prior
conditions established by the Press Gallery that limit his freedom of
expression. The author also submits that the media facilities in Parliament are
staffed by government employees and that the office equipment is owned by the
government.

6.9 The author states that he publishes The National Capital News "with a
regularity more than appropriate to satisfy the definition of what constitutes
newspapers".From the 26 October 1992 issue of the National Capital
News, provided by the author, it appears that the newspaper was "founded in 1982
to become a daily newspaper". He claims that no proper application procedure for
membership of the Gallery exists and that access is granted or withheld at whim.
According to the author, the Press Gallery at no time seriously considered his
application and did not review the information he provided. In this context, he
claims that a list of the dates of publication of his newspapers was withheld
from the members of the Press Gallery. He contests the State party's assertion
that he failed to cooperate with the Press Gallery. He further claims that the
Speaker of the House of Commons can intervene in situations involving
journalists and has done so in the past.

6.10 Further, the author states that he was given daily passes in 1982-83,
which were later converted to weekly and then monthly passes. Only in 1990 was
he granted a six month temporary membership. He states that he returned the
temporary membership since it did not grant him equal access. The author states
that temporary membership denied him the right to vote, to ask questions at
press conferences, to have a mail slot for receiving all the information
available to active members and a listing on the membership list. According to
the author, as a result "there was no assurance that all the information would
be provided to the author and any information that was sent individually by
people to whom the membership list was circulated would not include the author".

6.11 The author states that on 4 January 1996, the Ontario Court dismissed
his action against the Press Gallery. The author states that he will be
appealing the judgment, but that the proceedings are unreasonably prolonged and
thus no obstacle to the admissibility of his communication. Moreover, he states
that his communication is directed against the State party, and that his action
against the Press Gallery can thus not be a remedy to be exhausted for purposes
of the Optional Protocol. The author adds that he has discontinued his appeal
against the 30 November 1994 judgment of the Ontario Court concerning his claim
against the Speaker of the House of Commons, since it is accurate that the
Courts have no jurisdiction over Parliament.

6.12 As regards the State party's assertion that he has not made a prima
facie case, the author states that the State party has prohibited him access
to the premises of the Press Gallery in the Parliament Buildings, and that it
has not intervened to allow access for the author to the Press Gallery premises
outside the precincts of Parliament. According to the author it is evident that
the State party "has no desire or intention to respect its responsibilities and
obligations to abide by article 19(2)".

Further State party's submission

7.1 By submission of 25 October 1996, the State party provides some
clarifications and acknowledges that the author was denied access to the
Parliamentary precincts from 25 July 1995 until 4 August 1995, following an
incident on 25 July after which he was charged with trespass for attempting to
enter the Press Gallery in Parliament. He was convicted for trespassing on 26
April 1996 and on 9 July 1996 his appeal was dismissed.

7.2 The State party explains that although the author has access to the
Parliamentary buildings, he does not have access to the premises of the Press
Gallery located in the buildings of Parliament. However, there is no Court order
prohibiting him this access; the Court order only relates to the premises of the
Press Gallery located off Parliament Hill.

7.3 The State party provides a copy of the judgment by the Ontario Court
(General Division) of 4 January 1996, in which it was decided that there was no
genuine issue for trial in the author's action against the Press Gallery. The
judge found, on the basis of uncontradicted affidavit evidence, that the
privileges (access to the media facilities in Parliament) the author was seeking
were administered by the Speaker of the House of Commons, not by the Press
Gallery. As regards the issue of denial of membership, the Judge found that the
Press Gallery had not failed to accord the author natural justice. The Judge
noted that the author had been given temporary membership on a number of
occasions and that his failure to obtain active membership was attributable to
his refusal to answer questions posed to him by the Board of Directors of the
Press Gallery for the purposes of determining whether or not he fulfilled the
requirements for active membership.

7.4 The State party reiterates that the author's failure to gain access to
the Parliamentary Press Gallery is directly attributable to his failure to
cooperate with the Press Gallery in the pursuit of his application for active
membership. According to the State party, he has thus failed to exhaust the
simplest and most direct domestic remedy available to him. The State party adds
that the Speaker of the House of Commons has "good reason to expect individuals
to follow the normal channels for obtaining access to the Parliamentary Press
Gallery premises located on the Parliamentary precincts. In order to make access
to Parliamentary precincts meaningful, the Speaker needs to ensure that access
to any location on the precincts is controlled. For this purpose, in the
particular case of the Parliamentary Press Gallery premises located in the
Parliamentary precincts, the Speaker has chosen, as a matter of practice, to
condition such access on membership of the Canadian Press Gallery." The State
party submits that the Speaker's practice is reasonable and appropriate and
consistent with the freedom of expression and of the press.

Author's further comments

8.1 In his comments on the State party's further submission, the author
complains about the delays the State party is causing and submits that his
complaint is well-founded and has merit, particularly in the light of the State
party's demonstrated practice and intention to prolong a domestic resolution.

8.2 The author reiterates that the Government of Canada prevents him to seek
and receive information and observe proceedings on behalf of his readers, and
prohibits his access to facilities and services provided for the media. He
emphasizes that favoured journalists benefit from special privileges, among
others free phones, services of a Government staff of nine, access to Press
Conferences, office space, access to press releases and to information about the
itineraries of public officials, parking, access to the Library of Parliament.

8.3 The author submits that the Court has ruled that he cannot obtain the
privileges he wants from the Press Gallery, since they fall under the control of
the Speaker of the House of Commons. At the same time, the Speaker refuses to
intervene in what he sees as internal matters of the Press Gallery. The author
states that he tried to comply with the Press Gallery's requirements.
He states that in one year he published an average of three issues a
month., but that there is no appeal available against their decisions. He
contests that the temporary pass does not restrict the freedom of expression, as
it denied full access to all facilities and services provided for the press.

8.4 The author acknowledges that the Press Gallery may have some merit in
screening applicants who request access to the facilities and services provided
for the media, but argues that there should be a recourse available of any
decision that is unfair or in violation of fundamental human rights. He states
that Canada clearly is unwilling to provide such a recourse, as shown by the
refusals of the Speaker of the House to address the matter as well as by its
reply to the Committee, and argues that all available and effective domestic
remedies have thus been exhausted.

The Committee's decision on admissibility

9.1 At its 60th session, the Committee considered the admissibility of the
communication.

9.2 The Committee noted that the State party had argued that the
communication was inadmissible for failure to exhaust domestic remedies. The
Committee carefully examined the remedies listed by the State party and came to
the conclusion that no effective remedies were available to the author. In this
context, the Committee noted that it appeared from the Court decisions in the
case that the access the author was seeking, fell within the competence of the
Speaker of the House of Commons, and that decisions of the Speaker in this
matter were not reviewable by the Courts. The State party's argument that the
author could find a solution by cooperating in the determination of his
qualifications for membership in the Canadian Parliamentary Press Gallery did
not address the issue raised by the author's communication, whether or not the
limitation of access to the press facilities in Parliament to members of the
Press Gallery violated his right under article 19 of the Covenant.

9.3 The State party had further argued that the author had failed to present
a prima facie case and that the communication was thus inadmissible for
non-substantiation of a violation. The Committee noted that it appeared from the
information before it that the author had been denied access to the press
facilities of Parliament, because he was not a member of the Canadian
Parliamentary Press Gallery. The Committee further noted that without such
access, the author was not allowed to take notes during debates in Parliament.
The Committee found that this might raise an issue under article 19, paragraph
2, of the Covenant, which should be considered on its merits.

9.4 The Committee further considered that the question whether the State
party can require membership in a private organization as a condition for the
enjoyment of the freedom to seek and receive information, should be examined on
its merits, as it might raise issues not only under article 19, but also under
articles 22 and 26 of the Covenant.

10. Accordingly, on 10 July 1997, the Human Rights Committee decided that the
communication was admissible.

State party's submission on the merits

11.1 By submission of 14 July 1998, the State party provides a response on
the merits of the communication. It reiterates its earlier observations and
explains that the Speaker of the House of Commons, by virtue of Parliamentary
privilege, has control of the accommodation and services in those parts of the
Parliamentary precincts that are occupied by or on behalf of the House of
Commons. One of the Speaker's duties in this regard is controlling access to
these areas. The State party emphasizes that the absolute authority of
Parliament over its own proceedings is a crucial and fundamental principle of
Canada's general constitutional framework.

11.2 With regard to the relationship between the Speaker and the Press
Gallery, the State party explains that this relationship is not formal, official
or legal. While the Speaker has ultimate authority over the physical access to
the media facilities in Parliament, he is not involved in the general operations
of these facilities which are administered and run entirely by the Press
Gallery.

11.3 Press passes granting access to the media facilities of Parliament are
issued to Gallery members only. The State party reiterates that the
determination of membership in the Press Gallery is an internal matter and that
the Speaker has always taken a position of strict non-interference. It submits
that as a member of the public, the author has access to the Parliament
buildings open to the public and that he can attend the public hearings of the
House of Commons.

11.4 In this connection, the State party reiterates that the proceedings of
the House of Commons are broadcasted on television and that any journalist can
report effectively on the proceedings in the House of Commons without using the
media facilities of Parliament. The State party adds that the transcripts of the
House debates can be found on Internet the following day. Speeches and press
releases of the Prime Minister are deposited in a lobby open to the public, and
are also posted on Internet. Government reports and press releases are likewise
posted on Internet.

11.5 The State party argues that the author has not been deprived of his
freedom to receive and impart information. Although as a member of the public,
he may not take notes while sitting in the Public Gallery of the House of
Commons, he may observe the proceedings in the House and report on them. The
State party explains that "Note-taking has traditionally been prohibited in the
public galleries of the House of Commons as a matter of order and decorum and
for security reasons (e.g. the throwing of objects at the members of Parliament
from the gallery above)". Moreover, the information he seeks is available
through live broadcasting and Internet.

11.6 Alternatively, the State party argues that any restriction on the
author's ability to receive and impart information that may result from the
prohibition on note-taking in the public gallery in the House of Commons is
minimal and is justified to achieve a balance between the right to freedom of
expression and the need to ensure both the effective and dignified operation of
Parliament and the safety and security of its members. According to the State
party, states should be accorded a broad flexibility in determining issues of
effective governance and security since they are in the best position to assess
the risks and needs.

11.7 The State party also denies that a violation of article 26 has occurred
in the author's case. The State party acknowledges that a difference in
treatment exists between journalists who are members of the Press Gallery and
those who do not satisfy the criteria for membership, but submits that this has
not lead to any significant disadvantage for the author. The State party also
refers to the Committee's jurisprudence that not every differentiation can be
deemed to be discriminatory and submits that the distinction made is compatible
with the provisions of the Covenant and based on objective criteria. In this
context, the State party emphasizes that access to press facilities in
Parliament must necessarily be limited since the facilities can only accommodate
a limited number of people. It is reasonable to limit such access to journalists
who report regularly on the proceedings in Parliament. The Speaker is aware of
the criteria for membership in the Press Gallery and relies on these criteria as
an appropriate standard for determining who should or should not have access to
the media facilities of Parliament. It is submitted that these criteria, which
the Speaker has by implication adopted and endorsed, are specific, fair and
reasonable, and cannot be deemed arbitrary or unreasonable.

11.8 With regard to article 22 of the Covenant, the State party observes that
the author is not being forced by the Government to join any association. He is
free not to associate with the Press Gallery, nor is his ability to practice the
profession of journalism conditioned in any way upon his membership of the Press
Gallery.

The author's comments on the State party's submission

12.1 In his comments, dated 25 September 1998, the author refers to his
earlier submissions. He emphasizes that he is without remedy because of the
refusal of the Speaker to intervene on his behalf and to grant him access to the
press facilities or even hear him. The author emphasizes that no powers have
been transferred from the Speaker to the Press Gallery, nor has the Speaker the
authority to delegate his responsibilities to an individual group without
accountability to the Members of Parliament. According to the author, the
Parliamentary privileges are of no force or effect when they infringe
fundamental rights such as those contained in the Covenant. The author argues
that the State party is allowing a private organization to restrict access to
news and information.

12.2 The author also gives examples of how Speakers have intervened in the
past and given access to the media facilities in Parliament to individual
journalists who had been denied membership by the Press Gallery. He rejects the
State party's argument that the Speaker would be interfering with the freedom of
the press if he were to intervene, on the contrary, he argues that the Speaker
has a duty to intervene in order to protect the freedom of expression.

12.3 The author reiterates that as a journalist he requires equal access to
the media facilities of Parliament. The author refers to the 1992 Annual Meeting
of the Press Gallery, during which members stated that they had a fundamental
right to be at the Parliament facilities in order to have access to
information.. He states that, although it can be seen as reasonable for the
Speaker to have the accreditation of journalists handled by the staff assigned
to the Press Gallery, things got out of control and the Press Gallery began
using favouritism on the one hand and coercion and blackmail on the other, and
as a result the author was denied access and has no recourse. He emphasizes that
he meets all the requirements for accreditation. In any event, he argues that
the Gallery's by-laws can never affect his fundamental rights under article 19,
paragraph 2, to have access to information. He adds that the Gallery's by-laws
are arbitrary, inconsistent, tyrannical and in violation not only of the
Covenant but also of the State party's own constitution. The author submits that
if a group of journalists wishes to form their own association, they should feel
free to do so. This private, voluntary organization should in no way be given
authority or supervision over any publicly-financed activities and services as
it has today, especially since no possibility of appeal from its decisions is
provided. He rejects membership in this association as a prerequisite to
enjoying his fundamental right to freedom of expression and submits that he
should not be forced to belong to the Press Gallery in order to receive
information that is made available by the House of Commons.

12.4 With regard to the State party's argument that live coverage of all
proceedings in the House of Commons is available, the author submits that the
Cable Public Affairs Channel which broadcasts the House of Commons proceedings,
is a news service in competition with the author. He states that it is of very
little use as a journalist, since one has to watch whatever they decide to
broadcast. The author moreover contests that live coverage of all proceedings in
the House of Commons is available, since very often debates are broadcasted as
replays, and most Committee meetings are not televized. The author also argues
that there is much more to reporting on the activities of Parliament than
observe the sessions that take place in the House of Commons. In addition, being
recognized in the eyes of the Government community as part of the accepted media
is essential to the process of networking within that community. The author
therefore maintains that the restrictions by not having access to the media
facilities in Parliament seriously impede if not render impossible his ability
to seek and obtain information about the activities of the Parliament and
Government of Canada.

12.5 The author rejects the State party's argument that his being allowed to
do his work along with the other 300 accredited journalists would encroach on
the effective and dignified operation of Parliament and the safety and security
of its members. With regard to article 26 of the Covenant, the author denies
that the difference in treatment between him and journalists members of the
Press Gallery is reasonable and reiterates that he has been arbitrarily denied
equal access to media facilities. Although he accepts that the State party may
limit access to press facilities in Parliament, he submits that such limits must
not be unduly restraining, must be administered fairly, must not infringe on any
person's right to freedom of expression and the right to seek and receive
information, and must be subject to review. According to the author, the absence
of an avenue of appeal of a decision by the Press Gallery constitutes a
violation of equal protection of the law. The author does not accept that
limited space means that he cannot be allowed to use the press facilities, since
other new journalists have been admitted and since there would be other
possibilities of solving this, such as limiting the number of accredited
journalists who work for the same news organization.The author
refers to the State-owned CBC, which according to him has 105 members in the
Press Gallery.

12.6 Finally, the author submits that the exclusion from access to essential
services and facilities provided by the House of Commons for the press of those
journalists who are not a member of the Canadian Press Gallery constitutes a
violation of the right to freedom of association, since no one should be forced
to join an association in order to enjoy a fundamental right such as freedom to
obtain information.

Committee's examination of the merits

13.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.

13.2 With regard to the author's claims under articles 22 and 26 of the
Covenant, the Committee has reviewed, under article 93 (4) of its Rules of
Procedure, its decision of admissibility taken at its 60th session and considers
that the author had not substantiated, for purposes of admissility, his claim
under the said articles. Nor has he further substantiated it, for the same
purposes, with his further submissions. In these circumstances, the Committee
concludes that the author's communication is inadmissible under article 2 of the
Optional Protocol, as far as it relates to articles 22 and 26 of the Covenant.
In this regard, the admissibility decision is therefore repealed.

13.3 The issue before the Committee is thus whether the restriction of the
author's access to the press facilities in Parliament amounts to a violation of
his right under article 19 of the Covenant, to seek, receive and impart
information.

13.4 In this connection, the Committee also refers to the right to take part
in the conduct of public affairs, as laid down in article 25 of the Covenant,
and in particular to General Comment No. 25 (57) which reads in part: "In order
to ensure the full enjoyment of rights protected by article 25, the free
communication of information and ideas about public and political issues between
citizens, candidates and elected representatives is essential. This implies a
free press and other media able to comment on public issues without censorship
or restraint and to inform public opinion."General comment No. 25,
paragraph 25, adopted by the Committee on 12 July 1996. Read together with
article 19, this implies that citizens, in particular through the media, should
have wide access to information and the opportunity to disseminate information
and opinions about the activities of elected bodies and their members. The
Committee recognizes, however, that such access should not interfere with or
obstruct the carrying out of the functions of elected bodies, and that a State
party is thus entitled to limit access. However, any restrictions imposed by the
State party must be compatible with the provisions of the Covenant.

13.5 In the present case, the State party has restricted the right to enjoy
the publicly funded media facilities of Parliament, including the right to take
notes when observing meetings of Parliament, to those media representatives who
are members of a private organisation, the Canadian Press Gallery. The author
has been denied active (i.e. full) membership of the Press Gallery. On occasion
he has held temporary membership which has given him access to some but not all
facilities of the organisation. When he does not hold at least temporary
membership he does not have access to the media facilities nor can he take notes
of Parliamentary proceedings. The Committee notes that the State party has
claimed that the author does not suffer any significant disadvantage because of
technological advances which make information about Parliamentary proceedings
readily available to the public. The State party argues that he can report on
proceedings by relying on broadcasting services, or by observing the
proceedings. In view of the importance of access to information about the
democratic process, however, the Committee does not accept the State party's
argument and is of the opinion that the author's exclusion constitutes a
restriction of his right guaranteed under paragraph 2 of article 19 to have
access to information. The question is whether or not this restriction is
justified under paragraph 3 of article 19. The restricion is, arguably, imposed
by law, in that the exclusion of persons from the precinct of Parliament or any
part thereof, under the authority of the Speaker, follows from the law of
parliamentary privilege.

13.6 The State party argues that the restrictions are justified to achieve a
balance between the right to freedom of expresssion and the need to ensure both
the effective and dignified operation of Parliament and the safety and security
of its members, and that the State party is in the best position to assess the
risks and needs involved. As indicated above, the Committee agrees that the
protection of Parliamentary procedure can be seen as a legitimate goal of public
order and an accreditation system can thus be a justified means of achieving
this goal. However, since the accreditation system operates as a restriction of
article 19 rights, its operation and application must be shown as necessary and
proportionate to the goal in question and not arbitrary. The Committee does not
accept that this is a matter exclusively for the State to determine. The
relevant criteria for the accreditation scheme should be specific, fair and
reasonable, and their application should be transparent. In the instant case,
the State party has allowed a private organization to control access to the
Parliamentary press facilities, without intervention. The scheme does not ensure
that there will be no arbitrary exclusion from access to the Parliamentary media
facilities. In the circumstances, the Committee is of the opinion that the
accreditation system has not been shown to be a necessary and proportionate
restriction of rights within the meaning of article 19, paragraph 3, of the
Covenant, in order to ensure the effective operation of Parliament and the
safety of its members. The denial of access to the author to the press
facilities of Parliament for not being a member of the Canadian Press Gallery
Association constitutes therefore a violation of article 19 (2) of the Covenant.

13.7 In this connection, the Committee notes that there is no possibility of
recourse, either to the Courts or to Parliament, to determine the legality of
the exclusion or its necessity for the purposes spelled out in article 19 of the
Covenant. The Committee recalls that under article 2, paragraph 3 of the
Covenant, States parties have undertaken to ensure that any person whose rights
are violated shall have an effective remedy, and that any person claiming such a
remedy shall have his right thereto determined by competent authorities.
Accordingly, whenever a right recognized by the Covenant is affected by the
action of a State agent there must be a procedure established by the State
allowing the person whose right has been affected to claim before a competent
body that there has been a violation of his rights.

14. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political rights,
is of the view that the facts before it disclose a violation of article 19,
paragraph 2, of the Covenant.

15. Under article 2, paragraph 3(a), of the Covenant, the State party is
under the obligation to provide Mr. Gauthier with an effective remedy including
an independent review of his application to have access to the press facilities
in Parliament. The State party is under an obligation to take measures to
prevent similar violations in the future.

16. Bearing in mind that, by becoming a State party to the Optional Protocol,
the State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant to
article 2 of the Covenant, the State party has undertaken to ensure to all
individuals within its territory and subject to its jurisdiction the rights
recognized in the Covenant and to provide an effective and enforceable remedy in
case a violation has been established, the Committee wishes to receive from the
State party, within ninety days, information about the measures taken to give
effect to the Committee's Views. The State party is also requested to publish
the Committee's Views.

In regard to paragraph 13.2 of the Committee's Views, our opinion is that the
claims of the author under articles 22 and 26 of the Covenant have been sufficiently
substantiated and that there is no basis to revise the decision on admissibility.

Article 26 of the Covenant stipulates that all persons are equal before the
law. Equality implies that the application of laws and regulations as well as
administrative decisions by Government officials should not be arbitrary but
should be based on clear coherent grounds, ensuring equality of treatment. To
deny the author, who is a journalist and seeks to report on parliamentary
proceedings, access to the Parliamentary press facilities without specifically
identifying the reasons, was arbitrary. Furthermore, there was no procedure for
review. In the circumstances, we are of the opinion that the principle of
equality before the law protected by article 26 of the Covenant was violated in
the author's case.

In regard to article 22, the author's claim is that requiring membership in
the Press Gallery Association as a condition of access to the Parliamentary
press facilities violated his rights under article 22. The right to freedom of
association implies that in general no one may be forced by the State to join an
association. When membership of an association is a requirement to engage in a
particular profession or calling, or when sanctions exist on the failure to be a
member of an association, the State party should be called on to show that
compulsory membership is necessary in a democratic society in pursuit of an
interest authorised by the Covenant. In this matter, the Committee's
deliberations in paragraph 13.6 of the Views make it clear that the State party
has failed to show that the requirement to be a member of a particular
organisation is a necessary restriction under paragraph 2 of article 22 in order
to limit access to the press gallery in Parliament for the purposes mentioned.
The restrictions imposed on the author are therefore in violation of article 22
of the Covenant.

Lord Colville [signed]

Ms. Elizabeth Evatt [signed]

Ms. Cecilia Medina Quiroga [signed]

Mr. Hipólito Solari Yrigoyen [signed]

[Done in English, French and Spanish, the English text being the
original version. Subsequently to be translated also in Arabic, Chinese and
Russian as part of the Committee's annual report to the General Assembly.]

In regard to paragraph 13.2 of the Committee's Views, my opinion isthat the
claims of the author under articles 22 and 26 of the Covenant have been sufficiently
substantiated and that there is no basis to revise the decision on admissibility.

Article 26 of the Covenant stipulates that all persons are equal before the
law. Equality implies that the application of laws and regulations as well as
administrative decisions by Government officials should not be arbitrary but
should be based on clear coherent grounds, ensuring equality of treatment. To
deny the author, who is a journalist and seeks to report on parliamentary
proceedings, access to the Parliamentary press facilities was arbitrary. The
only reason why the author was denied access was that was not a member of the
Press Gallery Association. What article 26 strikes at is arbitrariness in
treatment. Here the basis of differentiation between a journalist like the
author who was denied access, and the journalists who were given access was
membership of a private organization, viz the Press Gallery Association which
basis did not bear any rational relation or relevance to the object of
acreditation. The requirement of membership of the Press Gallery Association was
therefore clearly arbitrary. Furthermore, there was no procedure for review. In
the circumstances, I am of the opinion that the principle of equality before the
law protected by article 26 of the Covenant was violated in the author's case.

In regard to article 22, the author's claim is that requiring membership in
the Press Gallery Association as a condition of access to the Parliamentary
press facilities violated his rights under article 22 read with article 19. The
right to freedom of association implies that in general no one may be forced by
the State to join an association. When membership of an association is a
requirement to engage in a particular profession or calling, or when sanctions
exist on the failure to be a member of an association, the State party should be
called on to show that compulsory membership is necessary in a democratic
society in pursuit of an interest authorised by the Covenant. In this matter,
the Committee's deliberations in paragraph 13.6 of the Views make it clear that
the State party has failed to show that the requirement to be a member of a
particular organization was a necessary restriction under paragraph 2 of article
22 in order to limit access to the press gallery in Parliament for the purposes
mentioned. The restrictions imposed on the author are therefore in violation of
article 22 of the Covenant.

Prafullachandra N. Bhagwati [signed]

[Done in English, French and Spanish, the English text being the original
version. Subsequently to be translated also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]

Individual opinion by Committee member David Kretzmer (partly dissenting)

I join the opinion of my colleagues Mr. Solari Yrigoyen and Ms. Elizabeth
Evatt, in the view that there was a violation of article 22 in the present case.
However, I do not share their view that a violation of article 26 has also been
substantiated. In my mind, it is not sufficient, in order to substantiate a
violation of article 26, merely to state that no reasons were given for a
decision. Furthermore, it seems to me that the author's claim under article 26
is in essence a restatement of his claim under article 19. It amounts to the
argument that while others were allowed access to the Press Gallery, the author
was denied access. Accepting that this constitutes a violation of article 26
would seem to imply that in almost every case in which one individual's rights
under other articles of the Covenant are violated, there will also be a
violation of article 26. I therefore join the Committee in the view that the
author's claim of a violation of article 26 has not been substantiated. The
Committee's decision on admissibility should be revised and the claim under
article 26 be held inadmissible.

David Kretzmer [signed]

[Done in English, French and Spanish, the English text being the original
version. Subsequently to be translated also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]

The Committee is of the view that the claims of the author in relation to articles
22 and 26 of the Covenant have not been sufficiently substantiated for purposes
of admissibility and has revised its previous favourable decision on admissibility.

It seems to me that articles 22 and 26 are, in the particular circumstances
of this communication, particularly relevant in deciding whether there has been
a violation of the author's right under article 19 (2) of the Covenant to seek,
receive and impart information, in relation to Parliamentary proceedings which
are matters of interest to the general public. It is to be noted that access to
parliamentary press facilities in this regard is given exclusively to members of
an association which has so to say a monopoly over access to those facilities.

Freedom of association under article 22 inherently includes freedom not to
associate. To impose membership of an association on the author as a condition
precedent to access to Parliamentary press facilities in effect means that the
author is compelled to seek membership of the association, which may or may not
accept the author as a member, unless he decides to forego the full enjoyment of
his rights under article 19 (2) of the Covenant.

The rights of the author, in respect of equality of treatment guaranteed
under article 26, have been violated in the sense that the State party has, in
effect, delegated its control over the provision of equal press facilities
within public premises to a private association which may, for reasons of its
own and not open to judicial control, admit or not admit a journalist like the
author as a member. The delegation of this control by the State party
exclusively to a private association generates inequality of treatment as
between members of the association and other journalists who are not members.

I conclude, therefore, that the author has been a victim of a violation of
his rights under article 19 (2) by the State party's recourse to measures,
designed to provide access to journalists reporting on Parliamentary
proceedings, which are themselves violative of articles 22 and 26 of the
Covenant and which cannot be justified by the restrictions permissible under
article 19 (3) of the Covenant.

Rajsoomer Lallah [signed]

[Done in English, French and Spanish, the English text being the original
version. Subsequently to be translated also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]

** Pursuant to rule 85 of the Committee's rules of procedure,
Mr. Maxwell Yalden did not participate in the examination of the case.

*** The text of four indidivual opinions signed by
seven Committee members is appended to the present document.

[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as part
of the Committee's annual report to the General Assembly.]